1. The present report addresses the admissibility of petition P071/01. Its
processing was initiated by the Inter-American Commission on Human Rights (hereinafter
“Commission” or “IACHR”) pursuant to the receipt of
a petition on January 30, 2001 and supporting materials on August 27, 2001.
The petition was filed by Sonia del Carmen Arce Esparza, the alleged victim,
and the Corporación de la Morada (hereinafter “the petitioners”)
against the Republic of Chile (hereinafter “the State”). Pursuant
to a request by the petitioners, the Centro por la Justicia y el Derecho Internacional
(CEJIL) was added as co-petitioner in October 2001.

2. The petitioners allege that certain articles of the Chilean Civil Code violate
Ms. Arce Esparza’s rights under Articles 1, 2, 17, 21, 24 and 25 of the
American Convention on Human Rights (hereinafter “the American Convention”)
and Articles 1, 2, 5(a), 15(1), 15(2) and 16(1) of the Convention on the Elimination
of All Forms of Discrimination Against Women (hereinafter “CEDAW”).
In particular, the petitioners argue that Article 1749 of the Chilean Civil
Code, which authorizes a husband to act as the sole administrator of his wife’s
goods, violates the alleged victim’s rights. The petitioners maintain
that other articles of the Chilean Civil Code concerning the administration
of goods between spouses also violate the alleged victim’s rights, namely
Articles 1750, 1752 and 1754 of the Civil Code. The petitioners assert that
they satisfy the Commission’s admissibility requirements. They maintain
that they are excused from exhausting domestic remedies, or in the alternative
that they have exhausted all domestic remedies.

3. The State for its part contends that the petition should be declared inadmissible
for failure to exhaust domestic remedies. They assert that Ms. Arce Esparza
has not fully or properly invoke two adequate remedies: (1) the recurso de protección,
and (2) the recurso de inaplicabilidad por inconstitutionalidad (hereinafter
the “recurso de inaplicabilidad”).

4. As set forth below, pursuant to its examination, the Commission concludes
that it is competent to take cognizance of the petitioners’ complaints
concerning alleged violations of Articles 1, 2, 17, 21, 24 and 25 of the American
Convention.

II. PROCESSING BEFORE THE COMMISSION

5. On January 30, 2001 the Commission received a petition lodged by petitioners
Sonia del Carmen Arce Esparza and the Corporación de la Morada. By a
note dated March 21, 2001 the Commission informed the petitioners that the processing
of the petition could not be initiated at that time because the information
provided did not indicate exhaustion of domestic remedies.

6. On April 25, 2001 the petitioners sent the Commission a four-page response
maintaining that they were excused from exhausting domestic remedies for lack
of effective remedies. On May 9, 2001 the Commission sent a note to the petitioners
informing them that there was still insufficient information on exhaustion of
domestic remedies to begin processing the petition.

7. Then on August 27, 2001 the petitioners sent the Commission additional information
on exhaustion of domestic remedies. By a note dated September 25, 2001 the Commission
informed the petitioners that they had initiated processing of the petition.
By a note of the same date, the Commission sent the pertinent parts of the petition
to the State, with a request for a response within 90 days in accordance with
Article 30(3) of its Rules of Procedure.

8. On October 17, 2001 the petitioner, Corporación de La Morada, sent
a letter to the Commission requesting that the Centro por la Justicia y el Derecho
Internacional (CEJIL) be added as co-petitioner. By a note dated November 1,
2001 the petitioner, Sonia Arce Esparza, similarly requested that CEJIL be added
as co-petitioner.

9. On November 28, 2001 the State wrote to the Commission requesting an extension
to submit its response. By note dated January 7, 2002, the Commission granted
this request in accordance with Article 30(3) of the Rules of Procedures of
the IACHR.

10. On January 22, 2002 the Commission received a letter from the petitioners
requesting a hearing before the Commission and the State. This request was granted
by the Commission in a note dated February 6, 2002. The hearing was held on
March 6, during its 114º regular period of sessions, to hear the positions
of the parties concerning the admissibility of the case under study. Both parties
were duly represented and participated.

11. The State submitted its reply to the Commission on March 7, 2002. The Commission
transmitted the State’s response to the petitioners on March 19, 2002,
with any observations in response requested within one month. To date, the petitioners
have not yet responded.

III. POSITION OF THE PARTIES

A. The petitioners

12. The petitioners argue that certain Articles in the Chilean Civil Code violate
Ms. Arce Esparza’s protected rights under the American Convention and
the CEDAW. In particular, the petitioners contend that the articles of the Civil
Code related to the rights and obligations of spouses in the administration
of goods violate Articles 1, 2, 17, 21, 24 and 25 of the American Convention
and Articles 1, 2, 5.a, 15.1, 15.2 and 16.1 of the CEDAW.

13. On February 28, 1976 Ms. Arce Esparza married Patricio Salinas Arce, thereupon
becoming subject to the provisions of the Civil Code relating to the administration
of goods between spouses. In 1994, after the death of her parents, Ms. Arce
Esparza inherited some real property. When she tried to sell this property,
the real estate agent in charge of processing the sale refused to complete the
transaction without the consent of Ms. Arce Esparza’s husband as required
by Article 1749 of the Chilean Civil Code.

14. The petitioners argue that Article 1749 in particular, as well as the other
articles related to the administration of goods between spouses, violate Ms.
Arce Esparza’s protected rights. Article 1749 of the Civil Code deems
the husband the head of the marital union and as such the sole administrator
of the goods of the marriage as well as the wife’s goods. “El marido
es jefe de la sociedad conyugal, y como tal administra los bienes sociales y
los de su mujer…”.[2] This law requires the husband’s
consent for any decisions related to the disposal of his wife’s property
which means that Ms. Arce Esparza is unable to sell her property without the
consent of her husband.

16. The petitioners maintain that the law does not offer any real alternatives
for Ms. Arce Esparza to administer her own goods. One alternative would be for
Ms. Arce Esparza to ask for her husband’s consent to administer her own
goods. The petitioners argue that this alternative is at once impossible (since
Ms. Arce Esparza’s husband cannot be located), and discriminatory since
she would be required to depend on her husband’s consent. Another alternative
would be for Ms. Arce Esparza to ask a judge for permission to administer her
own goods that would require Ms. Arce Esparza to show special cause (such as
that her husband refused consent without justification). The petitioners consider
that having to show special cause still unjustifiably limits Ms. Arce Esparza’s
right to administer her goods.

17. The petitioners argue that they have satisfied all of the Commission’s
admissibility requirements. Specifically as to the requirement of exhaustion
of domestic remedies, the petitioners argue that they are excused from satisfying
this under Article 46(2)(a) or, in the alternative, that they have exhausted
domestic remedies.

18. The petitioners argue that they are excused from exhausting domestic remedies
because both of the available remedies, the recurso de protección and
the recurso de inaplicabilidad, are inadequate. Both have as prerequisites that
there be an ongoing legal procedure in a lower court where the allegedly unconstitutional
law is being applied against Ms. Arce Esparza before she has access to these
remedies. This means that Ms. Arce Esparza would have to first go to a judge
and ask for permission to administer her own goods and have that permission
denied, before she could have access to the remedy. The petitioners argue that
these remedies are inadequate for two reasons: First, by having to ask the judge
for permission to administer her own goods, Ms. Arce Esparza would be submitting
herself to the very discrimination that she is challenging. Second, these remedies
do not address Ms. Arce Esparza’s allegation that the challenged articles,
even in the absence of direct application by a judge to prevent her from selling
her property, violate her rights.

19. In the alternative, the petitioners argue that Ms. Arce Esparza has exhausted
domestic remedies. On August 2, 2001 Ms. Arce Esparza filed a recurso de protección
with the Santiago Court of Appeals (Alta Corte de Apelaciones de Santiago) that
was denied on August 6, 2001. The Court stated that the appeal was denied because
the facts as alleged fell outside the ambit of that remedy.[6]
The petitioners contend that this denial of their appeal proves exhaustion of
domestic remedies.

B. The State

20. The State has not controverted the substance of the petitioners’
claims. Rather the State argues that, first, the Chilean law does protect Ms.
Arce Esparza’s rights and, second, that the petition should be denied
for failure to exhaust domestic remedies.

21. It is the position of the State that Chilean law does protect Ms. Arce
Esparza’s rights. The Chilean Constitution protects the right to equality
before the law.[7] Furthermore, Chilean law expressly guarantees
the right to equality before the law between men and women. “[H]hombres
y mujeres son iguales ante la ley.”[8] Another Chilean
law expressly guarantees everyone the right to full enjoyment of property rights.
“[Todos tienen] derecho de propiedad en sus diversas especies y sobre
toda clase de bienes [de tal manera que] nadie puede ser privado de este derecho…”[9]
There is also a Chilean doctrine that says that all laws that predate the Constitution
are deemed tacitly derogated where they conflict with Constitutional guarantees.
In this case, says the State, Article 1749 predates the Constitution and should
therefore not be enforced. Furthermore, the State asserts that anyone who attempts
to enforce this law against an individual is violating that individual’s
right and that when an individual’s right has been violated that individual
has access to effective domestic remedies.

22. In this case, the State affirms that Ms. Arce Esparza has access to two
effective remedies: (1) the recurso de protección, and (2) the recurso
de inaplicabilidad. While the petitioners characterize the remedies as ineffective,
the State considers that Ms. Arce Esparza failed to properly invoke them. In
the case of the recurso de protección, the reason the claim was denied
was because the victim did not challenge an illegal application of a law as
required by the remedy. Rather she argued that the laws themselves violated
her rights. In the case of the recurso de inaplicabilidad, the alleged victim
has not yet tried to invoke this remedy or satisfy its prerequisite that there
be an ongoing legal proceeding in a lower court where the allegedly unconstitutional
law is being applied against her. Therefore, the State feels that the petitioners
cannot argue that the remedies are inadequate until they have first tried to
properly invoke them. The State further alleges that the exhaustion requirement
has not been satisfied because petitioners, by their own admission, have not
ever invoked the recurso de inaplicabilidad. For all these reasons, the State
argues that the petition should be denied for failure to exhaust domestic remedies.

23. Under Article 44 of the American Convention, the petitioners are authorized
to lodge complaints with the IACHR. In the instant case, the alleged victim
named in the petition is an individual whose rights under the Convention Chile
undertook to respect and guarantee. With regard to the State, the Commission
notes that Chile has been a party to the American Convention since August 21,
1990, the date on which the respective instrument of ratification was deposited.
The Commission, therefore, is competent ratione personae to examine the petition.

24. The Commission is also competent ratione loci to take up the petition,
inasmuch as it alleges violations of rights protected under the American Convention,
said to have occurred within the territory of a State Party to that international
instrument. The IACHR is also competent ratione temporis since the obligation
to respect and ensure the rights protected by the American Convention was already
binding upon the State at the time the events alleged in the petition occurred.
Finally, the Commission is competent ratione materiae, inasmuch as the petition
denounces violations of human rights protected under the American Convention.

B. Other requirements for the admissibility of the petition

a. Exhaustion of domestic remedies

25. Article 46 of the American Convention specifies that, in order for a case
to be admitted, “remedies under domestic law have been pursued and exhausted
in accordance with generally recognized principles of international law.”
This requirement exists to ensure the state concerned the opportunity to resolve
disputes within its own legal framework. When domestic remedies are unavailable
as a matter of fact or law, however, the requirement that they be exhausted
is excused. Article 46(2) of the Convention specifies that this exception applies:
if the legislation of the state concerned fails to afford due process for the
protection of the right allegedly violated; if the party alleging the violation
has been hindered in his or her access to domestic remedies; or if there has
been unwarranted delay in the issuance of final judgment. Consequently, when
a petitioner alleges that he or she is unable to prove exhaustion, Article 31
of the Commission’s Rules of Procedure establishes that the burden then
shifts to the Government to demonstrate which specific remedies remain to be
exhausted and offer effective relief for the harm alleged.

26. The presentations of the petitioners and the State concur in indicating
two remedies that would apply to the situation denounced, namely the recurso
de protección and the recurso de inaplicabilidad. The petitioners maintain
that both remedies are ineffective, as their invocation and exhaustion would
require that the challenged norms first be applied through a specific judicial
decision or proceedings concerning the administration or disposition of Ms.
Arce Esparza’s goods. The petitioners argue that the alleged victim should
be able to challenge the constitutionality of the norms in reference, as they
presently affect her in terms of their discriminatory character, without being
required to meet further conditions. In the alternative, they argue that the
filing by the alleged victim of a recurso de protección fully satisfied
the Article 46 requirement of exhausting domestic remedies. The State, in summary,
affirms that the application of the norms in a concrete situation is a procedural
requirement, and that once satisfied, both remedies offer full potential for
effective redress. Accordingly, it maintains that the alleged victim failed
to properly invoke the recurso de protección in accordance with the applicable
requirements, and completely failed to invoke the recurso de inaplicabilidad,
and has thereby failed to satisfy the requirements of Article 46.

27. In analyzing the requirement of exhaustion of domestic remedies, the Commission
first notes that the situation denounced before it concerns the effect of the
challenged norms on the rights of the named victim. The basic contention is
that the norms violate the rights of Ms. Arce Esparza to be free from discrimination
and to the equal protection of the law simply by virtue of being in force. The
Commission observes that the jurisprudence of the system confirms that distinctions
in law based on personal status may, in and of themselves and absent any action
of further application, give rise to State responsibility for failure to observe
the obligations of equality and nondiscrimination.[10] In
the present case, neither available remedy permits Ms. Arce Esparza to directly
challenge the contested norms as they affect her rights by simply being in force.
Both remedies require the alleged victim to subject herself to additional applications
of the norms before she is able to challenge them. Therefore the Commission
finds that the available domestic remedies are inadequate and that, consequently,
the petitioners are excused from exhausting domestic remedies under Article
46 of the American Convention.

28. Moreover, the terms of Article 46 require that the substance of the situation
complained about before the Commission has been placed before the domestic courts.
As the jurisprudence of the system has repeatedly affirmed, not every remedy
formally or theoretically available need be exhausted; but rather, those that
are adequate and effective to remedy the situation denounced. As noted, the
parties concur that there are two potentially applicable remedies. While the
petitioners maintain that neither offered the possibility of relief that was
truly effective, Ms. Arce Esparza nonetheless invoked the recurso de protección
as a means of seeking redress before the domestic courts. The substance of her
claims was placed before the courts, and the action was dismissed for failing
to challenge a particular judicial decision or proceeding taken under the challenged
legislation. Ms. Arce Esparza thus placed her complaint before the domestic
courts through one of the remedies the State has indicated as valid. In principle,
once a petitioner has placed her complaint before the judiciary through a valid
remedy, there is no requirement that she continue to invoke and exhaust additional
remedies, nor has the State explained why the recurso de inaplicabilidad would
offer different or better relief with respect to the situation denounced.[11]
The Commission accordingly also finds that the petitioners exhausted domestic
remedies to the extent required under Article 46.

b. Time period for submission of the petition

29. In accordance with Article 46(1)(b) of the Convention, a petition must
be presented in a timely manner to be admitted, namely, within six months from
the date on which the complaining party was notified of the final judgment at
the domestic level.

30. According to the record before the Commission, in the present case notification
of the denial of the recurso de protección was received by Ms. Arce Esparza
on August 6, 2001, and the petition was received at the Secretariat on January
30, 2002. The Commission thus concludes that the petition meets the requirement
of timely filing.

c. Duplication of proceedings and res judicata

31. Article 46(1)(c) sets forth that admission of a petition is subject to
the requirement that the subject “is not pending in another international
proceeding for settlement,” and Article 47(d) of the Convention stipulates
that the Commission shall not admit a petition which “is substantially
the same as one previously studied by” it “or by another international
organization.” In the present case, the parties have not claimed and the
proceedings do not indicate the existence of either of these circumstances of
inadmissibility.

d. Characterization of the facts alleged

32. Article 47(b) of the American Convention sets forth that allegations which
do not state facts tending to establish a violation shall not be admitted. The
State has opposed the admissibility of the present petition by arguing, in essence,
that the Constitutional protection of the right to equality supercedes the potentially
incompatible distinctions set forth in the challenged legislation, and that
the petition isn’t ripe because the alleged victim hasn’t been prevented
from administering her property.

33. Whether the situation denounced characterizes a violation of Ms. Arce Esparza’s
rights under the American Convention is a question for the merits stage of review.
With respect to the question of characterization, however, the Commission wishes
to reiterate that the existence of legislation that includes distinctions based
on personal status may in and of itself characterize a potential violation.
“[A] norm that deprives a portion of the population of some of its rights
—for example, because of race— automatically injures all the members
of that race.”[12] In this regard, the Commission finds
in the present case that the petitioners have stated claims which, if consistent
with other requirements and shown to be true, could tend to establish the violation
of rights protected under Articles 1, 2, 17, 21, 24 and 25 of the American Convention.
In conformity with the terms of Article 29 of the American Convention, concerning
interpretation and application, the Commission will refer to the terms of the
Convention on the Elimination on All Forms of Discrimination (CEDAW) to the
extent pertinent as a source of law in interpreting the State’s rights
and obligations under the American Convention.

V. CONCLUSIONS

34. The Commission concludes that it is competent to take cognizance of the
instant case and that the petition is admissible, pursuant to Articles 46 and
47 of the American Convention.

35. Based on the factual and legal arguments set forth above, and without prejudging
the merits of the case,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,

DECIDES:

1. To declare the present case admissible with respect to the alleged violation
of the rights recognized in Articles 1, 2, 17, 21, 24 and 25 of the American
Convention.

2. To notify the parties of the decision.

3. To continue with the analysis of the merits of the case.

4. To make this report public, and publish it in its Annual Report to the General
Assembly of the OAS.

Done and signed at the headquarters of the Inter-American Commission on Human
Rights in the city of Washington, D.C., on the 10th day of the month of October,
2003. (Signed): Clare K. Roberts, First Vice-President; Susana Villarán,
Second Vice-President; Robert K. Goldman and Julio Prado Vallejo, Commissioners.

[1] Commissioner José Zalaquett, of Chilean nationality,
did not take part in the discussion and voting on the present report, pursuant
to Article 17(2)(a) of the Rules of Procedure of the Commission.

[10] See IACHR, Report Nº 4/01, Case 11.625, María
Eugenia Morales de Sierra (Guatemala), January 19, 2001, generally and at para.
39; IACtHR, International Responsibility for the Promulgation and Enforcement
of Laws in Violation of the Convention (Arts. 1 and 2 of the American Convention
on Human Rights), Advisory Opinion OC-14/94 of December 9, 1994, Ser. A Nº
14, para. 43.

[11] As indicated in Article 31(3) of the Rules of Procedure
of the Commission, a State alleging non-exhaustion of remedies has the burden
to demonstrate which remedies remain available and effective. Pursuant to that
Article and the applicable case law, the party alleging non-exhaustion must
raise specific rather than generic allegations concerning the remedies available
and their effectiveness. The allegations of the State with respect to the justification
for invoking a further remedy, subject to the same conditions as that which
was invoked and dismissed, have been generic. See IACHR, Report Nº 72/01,
Case 11.804, Juan Angel Greco (Argentina), October 10, 2001, at para. 49; Report
Nº 52/97, Case 11.218, Arges Sequeira Mangas (Nicaragua), Annual Report
of the IACHR 1997, para. 95. For the principle that the invocation and exhaustion
of one applicable remedy is, in principle, sufficient, see e.g., Eur.Ct. H.R.,
McCann and others v. U.K., 18984/91, Sept. 3, 1993.